Introduction
The Internet has accelerated the pace of copyright violations and piracy targeting music, a form of intellectual property whose use is governed by long-established law in the United States and elsewhere. The study will examine the response of the industry and the Recording Industry Association of America (RIAA), calling for heightened efforts to combat Internet music piracy by pursuing litigation against individuals engaged in the file sharing of copyrighted materials. Drawing upon the literature in the popular and scholarly press, the report will demonstrate that existing copyright law may well be inadequate to provide for needed intellectual property rights protection in cyberspace, where file-sharing and piracy are commonplace (Bates 229).
Copyright Law Basics
Copyright Infringement and Remedies
The U.S. Copyright Office (2008b, 1) identified Section 501 of Title 17 of the U.S. Code discusses copyright infringement. Copyright infringement is defined as follows:
“Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.”
Other specifications included in Title 17, Section 501 identify the right of a legal or beneficial owner of a copyright to pursue an action for any infringement of that right. Affected entities include broadcast and cable television systems and networks, radio stations, satellite carriers of audio and visual materials, and ISPs (U.S. Copyright Office, 2008 b, 1).
The remedies available for infringements are varied. Courts can, if infringement is proved, grant temporary and final injunctions against infringers. They can call for impounding infringing articles such as all copies of phonorecords that are made or used in violation of the copyright owner’s exclusive rights along with plates, molds, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. The court can also order the destruction of these materials and can award damages to the copyright holder (U.S. Copyright Office, 2008b, 2).
Responding to new strategies for infringing upon copyright protections, Congress has passed a number of laws. Among these are the Digital Millennium Copyright Act of 1998 which was designed to implement treaties that were signed in December 1996 at the World Intellectual Property Organization (WIPO) Geneva Conference. As was the case with the No Electronic Theft Act of 1997, the Digital Millennium Copyright Act of 1998 garnered support from the software and entertainment industries while it was opposed by scientists, librarians, and academics (UCLA Online Institute for Cyberspace Law and Policy 1). Figure 1 below presents key highlights of the Digital Millennium Copyright Act of 1998.
Figure 1
Key Features, Digital Millennium Copyright Act
.
Makes it a crime to circumvent anti-piracy measures built into most commercial software.
Outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software.
Does permit the cracking of copyright protection devices, however, to conduct encryption research, assess product interoperability, and test computer security systems.
Provides exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances.
In general, limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet.
Service providers, however, are expected to remove material from users’ web sites that appears to constitute copyright infringement.
Limits liability of nonprofit institutions of higher education — when they serve as online service providers and under certain circumstances — for copyright infringement by faculty members or graduate students.
Requires that “webcasters” pay licensing fees to record companies.
Requires that the Register of Copyrights, after consultation with relevant parties, submit to Congress recommendations regarding how to promote distance education through digital technologies while “maintaining an appropriate balance between the rights of copyright owners and the needs of users.”
States explicitly that “[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use” (“UCLA Online…” 1).
These key provisions of the Digital Millennium Copyright Act of 1998 represent what Zairns (259) considers to be the best efforts of Congress to respond to concerns expressed by both Internet service providers (ISPs) and copyright owners. Congress rejected proposals for direct infringement liability in the belief that this would threaten the viability of ISPs. Instead, it created in the Act what Zarins (260) calls a notice-and-takedown scheme which was supported by precedent in other copyright cases. Section 512 of the Digital Millennium Copyright Act of 1998 provides safe harbors from liability for certain ISPs, but copyright owners can warn a service provider of alleged infringement to commence a path to liability. What this suggests is that Congress has not been able as yet to differentiate between copyright protections and the obligations of ISPs to protect copyright holders (Zarins 261).
Zarins (262) asserts that the warnings identified in Section 512 of the Act are becoming extremely important to the courts which use these warnings to establish prematurely the knowledge element of contributory copyright infringement. However, the Act is relatively new and therefore has only begun to have its provisions tested in the courts.
An equally significant piece of legislation impacting on copyright is the Sonny Bono Copyright Term Extension Act (CTEA) which lengthened the copyright term of all subsisting and future creative works by an additional 20 years (Tehranian 538). By altering the terms of the state-granted copyright monopoly for millions of created works, the CTEA represented a multi-billion dollar allocation decision which ensured that virtually no creative works would enter the public domain over the following two decades.
Tehranian (537) said that the CTEA passed through Congress with relatively little debate. Only a year later, Congress amended the definition of works made for hire to explicitly include sound recordings. This created a situation in the music industry wherein the ambiguity over what types of works may qualify as works for hire has profound implications. First, the designation affects copyright duration. Second, the designation affects the exercise of copyrights. It limits the ownership of copyrights to original producers and not their heirs and exempts works made for hire from termination.
The Current Situation
These legal efforts notwithstanding, the music industry as described by MacMillan (3) has continued to confront the problem of music piracy and illegal file sharing by both organizations and individuals. Perhaps the best known case is that of Napster which.
Wholesale copyright infringement arrived on the Internet with the introduction of the Napster service which allowed individuals to download music for free. On behalf of the copyright holders (the music companies and artists who had title to music and lyrics), the entertainment industry responded with litigation. The first major litigation was A & M Records Inc., v. Napster, Inc. in 2001. Napster facilitated the transmission of mp3 audio files among its users via peer-to-peer file-sharing. The company’s Music Share free software, its network servers, and server-side software enabled its users to make mp3 music files stored on individual computers available for coping by other Napster users and to transfer exact copies of such files over the Internet.
In the Napster case, the plaintiffs were corporations that were engaged in the recording, distribution, and sale of copyrighted music and sound recordings. The case hinged on the fact that Napster used centralized servers to provide its search results. In an appeal, Napster challenged a modified preliminary injunction from the District Court on remand from a prior appeal. This injunction required Napster to remove any user file if the firm had reasonable knowledge that it contained plaintiffs’ copyrighted works (Posey and Posey 1). Ultimately, higher courts affirmed the lower court order that Napster should shut down its file transferring service until it could satisfy the court that the mandated effort had been made to block out or screen out all copyrighted worked about which it had been notified (Posey and Posey 15). Because Napster had the ability to control and direct the search results seen by its users, the plaintiffs were able to obtain orders that effectively shut Napster down.
As described by Posey and Posey (14) Napster is one of the few instances in which representatives of the copyright holder successfully challenged and reformed an entity that supported peer-to-peer copyright infringement through litigation. First, the law covering this issue was unsettled. Napster originally argued that the downloading service was fair use. Second, Napster was based on an immature technology. The required centralized servers and the ability to control and filter results was the keystone of the Ninth Circuit’s decision to impose an injunction. Finally, Napster was attempting to profit from the direct infringement (Posey and Posey 20).
Gardner (11) also described the case of file sharer Jammie Thomas, who was originally found guilty of making and distributing sound recordings on a peer-to-peer network in an effort to make an end run around copyright laws. Originally, when the RIAA brought suit against Thomas, the jury ruled against him and awarded the RIAA $222,000. However, a US District Court in Minnesota declared a mistrial when an appeal was filed. As Gardner (11) points out, this signaled to members of RIAA that the courts were becoming somewhat less willing to impose strict penalties on individuals and organizations that distributed copyrighted music recordings without permission.
Similarly, Rott (443) pointed out that it is very difficult to police cyberspace to prevent most of the peer-to-peer file sharing of copyrighted materials that takes place. While catching and punishing a Napster or a Grokster is relatively easy overall, Rott (443) points out that it is much more difficult to identify, arrest, prosecute, and convict individuals like Thomas who engage in such activities. This is because the Internet is a largely un-policed communication medium and there is a lack of interoperability that makes it difficult at best to identify ordinary individuals who are participating in this type of activity.
This point was also made by Kenneth Crews (1) with respect to the Napster case. Napster could be caught precisely because of its volume of transactions. Individual file sharers who transfer a limited number of copyright materials may well be subject to a fine of $750 to $30,000 per work infringed are not easily identified. Many jurisdictions, according to Bates (229), are becoming less and less willing to present these kinds of cases to the courts and as noted above the courts themselves are less enthusiastic about penalizing individuals. It would appear, said Bates (240), that the recording industry itself is being directly challenged to develop some method of preventing copyright infringement.
Possible Solutions
As Bates (240) points out, the recording industry is being challenged to develop technological strategies to technological problems. The RIAA is taking a lead role in actively indentifying potential technologies that can reduce piracy and make it easier to detect when copyrighted music recordings have been inappropriately downloaded or shared.
One technology that may be useful was developed by a company called Omnifone (“Omnifone Offers Tailored Solution…” 9). This company has created Music Station Next Generation, a service that works through a user’s broadband connection or set-top box that the individual service provider can tailor. Streaming and downloads that are locked to specific devices perform the spine of the offering which will be enhanced with editorial content about artists, recommendation tools, community features, and playlist managers. ISPs will charge users for this service which is now being licensed and deployed in Europe.
With consumers increasingly interested in purchasing music online rather than in CD form, it is quite clear that the recording industry must become much more directly engaged in overseeing such activities and in preventing piracy (Gardner 11). There is some potential for watermarking or otherwise embedding devices in recordings that, if the recording is accessed or downloaded illegally, will cause the recording to self-destruct. Rott (445) pointed out that this kind of technology may be the most beneficial in the long run. This is because it would permit legitimate sellers like iTunes to continue making downloads available while rendering piracy efforts unsuccessful. Of course, just as this technology offers hope for RIAA and music industry players, it seems likely that sophisticated hackers will learn how to disable even the most clever watermark devices.
What seems to be most disappointing at this juncture as described by MacMillan (3) is the retreat of the courts from aggressive oversight of copyright violations in cyberspace. The legislation described above will be useful in preventing copyright infringements in cyberspace only to the extent that cases of infringement are aggressively pursued in the courts and the courts exhibit a willingness to enforce the law. This is the challenge that now awaits the RIAA and its members as online piracy continues to be a major cause for concern.
Works Cited
Anonymous. “Omnifone Offers Tailored Solution to Online
Piracy.” Music Week, 28 Feb 2009, 9.
Bates, Ryan. “Communication Breakdown: The Recording Industry’s
Pursuit of the Individual Music User, a Comparison of
U.S. and E.U. Copyright Protections for Internet Music
File Sharing.” Northwestern Journal of International Law
& Business, 2004, 25: 229-256.
Crews, Kenneth D. “Case Summary: A&M Records Inc. v. Napster
Inc.: Implications for the Digital Music Library.”
18 Sept 2001. Available at www.dml.indiana.edu/pdf
/AnalysisofNapsterDecision.pdf. Accessed online May
20, 2009.
Gardner, Eriq. “Seeking Order in the Court.” Billboard,
11 Oct 2008, 120: 11.
MacMillan, Douglas. “The Music Industry’s New Internet
Problem.” Business Week Online, 6 Mar 2009. Available
at www.businessweek.com/technology/content/mar2009
/tc2009035_000194.htm. Accessed online May 20, 2009.
Posey, K.L., and Posey, T.W. “The Antibiotic Paradox in Peer-to-
Peer File-Sharing Post-MGM v. Grokster.” Internet Law, 2006, 9: 1, 14-20.
Rott, Peter. “Download of Copyright-Protected Internet
Content and the Role of (Consumer) Contract Law.”
Journal of Consumer Policy, 31(4), 441-457.
Tehranian, James. “Infringement Nation: Copyright Reform and
the Law/Norm Gap.” Utah Law Review, 2007, 63: 537-550.
UCLA Online Institute for Cyberspace Law and Policy. “The
Digital Millennium Copyright Act.” 2008. Available at www.gseis.ucla.edu/iclp/dmca1.htm.
U.S. Copyright Office. “Copyright Infringement.” 2008a. Available at www.copyright.gov/help/faq/faq - infringement.html.
U.S. Copyright Office. “Copyright Infringement and Remedies.” 2008b. Available at www.copyright.gov/title17/ 92chap5.html.
Zarins, E. “Notice Versus Knowledge Under the Digital Millennium Copyright Act’s Safe Harbors.”
California Law Review, 2004, 92: 259-298.